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Barnes & Noble hires David Boies
Wednesday, November 30 2011 @ 11:57 PM EST

Barnes & Noble has hired [PDF] David Boies and Boies Schiller & Flexner to represent it before the ITC.

Here are some recent filings since we last looked in on the Barnes & Noble ITC story that you might find of interest:

11/17/2011 - 464588 - Order Granting Non-Party Amazon.Com., Inc.'s Unopposed Motion for Extension of Time to Respond to and/or Move to Quash Respondents' Subpoena Duces Tecum and Ad Testificandum

11/17/2011 - 464590 - Order Granting Non-Party SalesForce.Com., Inc.'s Fourth Unopposed Motion for Extension of Time to Respond to and/or Move to Quash Respondents' Subpoena Duces Tecum and Ad Testificandum

11/17/2011 - 464607 - Letter to Secretary James R. Holbein Regarding Motion No. 769-035

11/18-2011 - 464741 - Agreement to be Bound by the Protective Order of Daniella L. Esses

11/18/2011 - 464837 - Agreement to be Bound by the Protective Order of Jamie K. Israelow, Susan Magee, Patricia M. Carruthers and Peter Cooper

11/21/2011 - 464969 - Non-Party Google Inc.'s Opposition to Complainant Microsoft Corporation's Motion to Certify to the Commission a Request for Judicial Enforcement of Subpoenas (Motion No. 769-029)

11/21/2011 - 464991 - Commission Investigative Staff's Response to the Joint Motion of Complainant Microsoft and Respondents Hon Hai and Foxconn for Partial Termination of the Investigation Based on Withdrawal of the Amended Complaint as to the Foxconn/Hon Hai Respondents

11/23/2011 - 465242 - Non-Party InterDigital Inc.'s Unopposed Motion for an Extension of Time to Respond and/or Move to Quash Microsoft Corp.'s Subpoenas Duces Tecum and Ad Testificandum

11/25/2011 - 465262 - Motion for Leave to File a Reply in Support of Nokia, Inc.'s Motion to Limit or Quash Barnes & Noble, Inc. and Barnesandnoble.com's Subpoena Duces Tecum and Ad Testificandum to Third Party Nokia Inc.

11/28/2011 - 465326 - Initial Determination Granting Joint Motion of Complainant Microsoft Corporation and Respondents Hon Hai Precision Industry Co., Ltd

11/28/2011 - 465364 - Microsoft's Motion to Strike Portions of Barnes & Noble's Expert Report of Dr. Gregory K. Leonard

11/28/2011 - 465367 - Respondents Barnes & Noble, Inc.'s, Barnesandnoble.com LLC's and Inventec Corp.'s Response to Microsoft's Motion for Leave to Submit a Supplemental Expert Report for Seth T. Kaplan, Ph.D

11/29/2011 - 465392 - MOSAID's Motion for Leave to File Reply to Barnes and Noble's Opposition to MOSAID's Motion to Quash and/or Limit Barnes and Noble's Third-Party Subpoenas Duces Tecum and Ad Testificandum

11/29/2011 - 465500 - Respondents Barnes & Noble, Inc.'s, Barnesandnoble.com LLC's and Inventec Corporation's Motion for Leave to File a Supplemental Notice of Prior Art

11/30/2011 - 465509 - Agreement to be Bound by the Protective Order of David Boies

11/30/2011 - 465508 - Notice of Appearance of Boies, Schiller & Flexner LLP on Behalf of Barnes & Noble, Inc. and barnesandnoble.com LLC

Here's the letter from Boies Schiller's David Boies to the ITC, as text:
[Boies Schiller letterhead]

November 29, 2011

VIA ELECTRONIC FILING

Honorable James R. Holbein
Acting Secretary
U.S. International Trade Commission
[address]

Certain Handheld Electronic Computing Devices
Related Software and Components Thereof, Inv. No. 337-TA-769

Dear Secretary Holbein:

Boies, Schiller & Flexner LLP represents Respondents Barnes & Noble, Inc. and barnesandnoble.com LLC in the above-referenced proceeding. Please be advised that David Boies has read the Protective Order (Order No. 1) issued by Administrative Law Judge Theodore R. Essex in this investigation and, in accordance with that Order, hereby agrees:

(1) To be bound by the terms of the Protective Order;

(2) Not to reveal confidential business information under the Protective Order to anyone other than another person designated in paragraph 3; and

(3) To use such confidential business information solely for purposes of this investigation.

Respectfully submitted,

[signature]
David Boies
Boies, Schiller & Flexner LLP
[address, phone, fax, email]

Google's filing is eye-opening. It seems Microsoft is trying to compel Google to respond to a very broad subpoena. Google is not a party to this ITC matter or the litigation. Microsoft's motion "goes far beyond the threshold for reasonable third-party discovery in Section 337 investigations," Google says. What is it that Microsoft is asking for? -- information concerning Google's "strategies for responding to Microsoft's patents and patent infringement claims."

Despite the lack of any reasonable explanation of relevance, Microsoft's subpoenas broadly seek information regarding Google's privileged legal and highly confidential strategies related to Android, including: (1) Google's strategy concerning the "actual or potential impact on Android distribution of patents held by Microsoft;" (2) Google's strategy concerning "patent infringement lawsuits by Microsoft related to Android" and "public claims by Microsoft or Microsoft executives or employees that Android infringes Microsoft patents"; and (3) "strategy discussions ... of competing mobile operating systems from Microsoft." Notably, the subpoena application is signed by the same Microsoft attorneys that are pursuing parallel patent litigation against other Android handset providers.
A footnote references the lawyers in the Microsoft case against Motorola. What Google has agreed to provide is pretty broad as well, although Google mentions certain restrictions that Microsoft agreed to. Here's what Google agreed to provide:
Subject to certain limitations agreed to by Microsoft, Google agreed to produce documents responsive to the majority of Microsoft's Requests (and a witness to testify regarding corresponding Topics), including:
Request for Production No. 1: All documents reflecting or relating to communications with Barnes & Noble regarding the Microsoft Patents or Other Identified Patents.

Request for Production No. 2: All documents reflecting or relating to communications with Barnes & Noble regarding license negotiations between Barnes & Noble and Microsoft.

Request for Production No. 3: All agreements between Google and Barnes & Noble relating to Android, and all documents reflecting or relating to communications with Barnes & Noble regarding Android distribution or licenses.

Request for Production No. 7: All documents reflecting or relating to business discussions with Barnes & Noble regarding the actual or potential impact, on Android distribution, of actual, potential, or threatened patent infringement lawsuits.

Request for Production No. 9: All documents reflecting or relating to Google's contemplation of, or business discussions with Barnes & Noble concerning, indemnification for patent infringement claims related to deployment of Android by Barnes & Noble.

Request for Production No. 10: All documents reflecting or relating to Google's contemplation of, or business discussions with device manufacturers concerning, indemnification for patent infringement claims related to deployment of Android by device manufacturers.

Request for Production No. 11: All documents reflecting or relating to Google's contemplation of, or business discussions with Barnes & Noble concerning, designing, redesigning, altering, withholding, or removing Android features to avoid infringing patents, respond to patent infringement claims or assertions, or respond to negotiations over patent licenses.

Request for Production No. 12: All documents reflecting or relating to Google's contemplation of, or business discussions with device manufacturers concerning, designing, redesigning, altering, withholding, or removing Android features to avoid infringing patents, respond to patent infringement claims or assertions, or respond to negotiations over patent licenses.

Request for Production No. 17: All documents reflecting or relating to historical and projected unit shipments, for the United States and worldwide, for Android or other operating systems.

That sounds like a lot, but I think there is a clue to why Google might not mind agreeing to the list -- Barnes & Noble, Google mentions early in the filing, "has not entered into any licensing or distribution agreements with Google." And device manufacturers, Google explains, "are free to use Android and change it as they see fit, without Google's knowledge or approval". That might indicate that many of the documents Microsoft is seeking simply don't exist.

But the demands for Google to supply what Google views as irrelevant information -- that's what Google is asking the court to block. Irrelevant, how?

Instead of seeking information that might demonstrate or refute an anti-competitive effect on a relevant market, Microsoft generally seeks Google's subjective opinions and responses to Microsoft's actions, or Google's analysis of Microsoft's own products. Microsoft has not even limited its Requests and Topics to the patents asserted in this investigation; instead it seeks discovery on Google's analysis of its entire patent portfolio. The Requests and Topics bear no reasonable relationship to Microsoft's purported justification for subpoenaing Google....

Microsoft's Requests and Topics call for documents and testimony related to any of Microsoft's thousands of patents....Other Requests and Topics call for information related to potential lawsuits related to Android that Microsoft could bring on any of those thousands of patents....

Many of the disputed Requests and Topics improperly seek information related to Google's subjective opinions. For example, Requests and Topics 4, 5, and 6 seek Google's "assessments" and "strategy" of how Microsoft's patents, patent litigation, and threats of patent litigation impact Android distribution. Request and Topic 16 seek Google's analysis of Microsoft's mobile operating system. Google's subjective assessment and strategy is not relevant to whether Microsoft has misused its patents....

Microsoft's subpoenas are an attempt to peer into Google's operations; they are not an attempt to obtain evidence related to anticompetitive effects.... Based on the scope of Microsoft's Requests and Topics, and the custodians identified, Microsoft is attempting to use this investigation to review Google's sensitive business documents rather than seek evidence related to Barnes & Noble's patent-misuse defense....

Several of Microsoft's Requests and Topics call for wholesale production of documents and information related to Google's legal strategy. For example, Requests and Topcis 4, 5 and 6 call for Google's "assessments, strategy discussions, or analyses of" Microsoft's patents, patent litigation, and claims of patent infringement. These Requests and Topics seek information on Google's analysis of quintessentially legal subjects.

Google asks that Microsoft's motion be denied.

So, how spooked does Microsoft sound to you? It sounds to me like open source gives Microsoft deep anxiety.


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